DECISION

Fair Work Act 2009
s.236—Majority support determination

Construction, Forestry, Maritime, Mining and Energy Union
(B2021/120)

COMMISSIONER WILLIAMS

PERTH, 5 MAY 2021

Application for a majority support determination - SRG Global Industrial Services Pty Ltd.

[1] On 25 February 2021, the Construction, Forestry, Maritime, Mining and Energy Union (the Applicant or the CFMMEU) applied under section 236 of the Fair Work Act 2009 (Cth) (the Act) for a majority support determination in respect of a proposed single enterprise agreement (the Application).

[2] The Applicant seeks a determination that a majority of employees employed by SRG Global Industrial Services Pty Ltd (SRG Industrial or the Respondent) at its yard in Wangara (the Wangara Yard or the Yard) wish to bargain for an agreement.

Background facts

[3] In August 2018, the Federal Court approved a Scheme of Arrangement that involves SRG Limited and Global Construction Services Limited (GCS) merging to create SRG Global Limited. This merger resulted in two relevant entities for this matter:

• SRG Industrial, being a former GCS entity; and

• SRG Global Integrated Services Pty Ltd, being a former GCS entity (SRG Integrated).

[4] The merged group envisaged that SRG Integrated would eventually replace SRG Industrial and that SRG Industrial would consequently be wound-up.

[5] At the time of the merger, the GCS Industrial Services Enterprise Agreement 2013 (the 2013 Agreement) was in operation, which applied to SRG Industrial and its existing workforce.

[6] It was decided that the businesses corporate structure would be streamlined and that the administrative double up would be minimised.

[7] As part of this strategy, on 5 April 2019, the GCS Integrated Services Maintenance and Services Enterprise Agreement 2018 (the 2018 Agreement) was approved by the Fair Work Commission (the Commission). It came into operation on 12 April 2019.

[8] Effective 12 April 2019, following the approval of the 2018 Agreement, SRG Industrial ceased employing any new employees covered by the 2013 Agreement. SRG Industrial has not, from this date, employed any new blue collar employees at the Yard, nor does it intend on doing so.

[9] As a result, SRG Industrial has not engaged any new blue collar employees to work at the Wangara Yard since April 2019.

[10] The 2018 Agreement has superior terms and conditions compared to the 2013 Agreement.

[11] From November 2018, SRG Industrial commenced the implementation of its corporate restructure strategy and began the process of simplifying the structure and internal systems and processes, including unifying accounting, payroll systems and leave requests, by transferring the employees covered by the 2013 Agreement to other employing entities.

[12] This process has been delayed by a number of factors, including COVID-19.

[13] On 19 February 2021, SRG Industrial (in conjunction with SRG Integrated) commenced a period of consultation with its workforce (including the Wangara Yard employees) concerning transferring employment over to SRG Integrated by June 2021 (this date being the date set as it is relevant for tax and corporate reporting reasons).

[14] SRG…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] FWC 1924
Decision Date: 5 MAY 2021

CaseChat Overview and Summary

The case of Construction, Forestry, Maritime, Mining and Energy Union involved an application for a majority support determination concerning SRG Global Industrial Services Pty Ltd. The union sought to have its enterprise agreement recognised as the applicable agreement for the employees of the company. The matter was heard in the Fair Work Commission, the body responsible for the resolution of workplace disputes in Australia.

The central legal issue was whether the union had sufficient support among the employees to warrant the recognition of the enterprise agreement. The union argued that it had majority support and therefore the agreement should be recognised. The company, on the other hand, contended that the union had not demonstrated that it had the requisite majority support, and thus the application should be dismissed.

The Fair Work Commission examined the evidence provided by both parties and found that the union had not met the burden of proof required to establish majority support. The Commission noted that while the union had presented a number of signatures, these were insufficient to demonstrate a majority of the relevant employees. Furthermore, the Commission was not satisfied that the process by which the signatures were obtained was robust enough to ensure that they represented genuine expressions of support. As a result, the application for a majority support determination was dismissed. The Commission ordered that the union's application be rejected and that the enterprise agreement not be recognised.

Orders